Delhi District Court
Shri. Rakesh Khosla vs Sh. Anil Khosla on 24 May, 2023
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No. 10027/2016
In the matter of :
Shri. Rakesh Khosla
S/o Late Sh. Om Parkash Khosla
R/o 105-D, Pocket-A
Sukhdev Vihar, New Delhi
..... Plaintiff
Vs.
1. Sh. Anil Khosla
S/o Late Shri Shori Lal
R/o H. No. 949-A, Sector 17-B
Gurgaon, Haryana
2. Sh. Sunil Kumar Khosla
S/o Late Shori Lal
R/o D-17, Sector 12
Gautam Budh Nagar
Noida (UP)
3. Dr. Deepak Khosla
S/o Late Shori Lal Khosla,
R/o 1704 Parnell Drier
Phoenix Arizona 85085, U.S.A
4. Dr. Kamini Pruthi
D/o Late Shori Lal Khosla
R/o 548, Rancho Simi Convina
California 91724, U.S.A
5. Sh. Rajiv Khosla (Deceased)
Through LRs:
(a) Smt. Varsha Khosla
Wife of Late Mr. Rajiv Khosla
Resident of A-127, 3rd Floor
Lajpat Nagar-I, New Delhi
(b) Mr. Karan Khosla
S/o Late Mr. Rajiv Khosla
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.1 of 57
Digitally signed by
NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2023.05.24
16:57:40 +0530
Resident of A-127, 3rd Floor
Lajpat Nagar-I, New Delhi
6. Smt. Rita Sahni (Deceased)
Through LRs
(a) Sh. Ravinder Sahni (Husband)
(b) Ms. Ruchika (Daughter)
(c) Ms. Reena (Daughter)
All residents of 31-D, Sheikh Sarai
Phase-I, New Delhi
7. Smt. Meenka Dhingra
W/o Sh. Vipin Dhingra
R/o 46/1, Subhash Road,
Dehradun, Uttarakhand
8. Smt. Poonam Mitra
W/o Sh. Anil Mitra
R/o 91-D, Sidharath Ext. Pocket-C
New Delhi
9. Ms. Neeru Khosla
Daughter of late Shyam Lal Khosla
R/o N-7, Jangpura Extension,
New Delhi.
10. Ms. Priya Khosla
Daughter of Late Shyam Lal Khosla
R/o N-7, Jangpura Extension,
New Delhi.
11. Mrs. Shakuntla Khosla
W/o Late Sh. Iqbal Nath Khosla
R/o 490, Sainik Vihar,
Near Rani Bagh, New Delhi
12. Sh. Praful Khosla
Sons of Late Sh. Iqbal Nath Khosla
Resident of 490, Sainik Vihar
near Rani Bagh, New Delhi
13. Sh. Vipul Khosla
Sons of Late Sh. Iqbal Nath Khosla
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.2 of 57
Digitally signed by
NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2023.05.24
16:58:23 +0530
Residents of 490, Sainik Vihar
near Rani Bagh, New Delhi
.....Defendants
Date of Institution : 31.05.2011
Date on which Judgment
reserved : 19.05.2023
Date of Judgment : 24.05.2023
Result : Dismissed
SUIT FOR PARTITION OF PROPERTY NO. N-7, JANGPURA
EXTENSION, NEW DELHI AND FOR RENDITION OF
ACCOUNTS AND PERMANENT INJUNCTION
JUDGMENT
This is a suit on behalf of plaintiff against the defendants seeking partition of property bearing number N-7, Jangpura Extension, New Delhi (for short, 'suit property') against the defendants.
2. The narration of the plaint as culled out from the plaint itself is as under:
Late Smt. Labh Kaur Khosla, widow of late Sh. Aman Nath Khosla was the perpetual lessee of the suit property ad measuring about 200 sq yards vide perpetual lease deed dated 22.04.1965 granted/executed in her favor by the President of India and both duly registered with the office of Sub-Registrar, New Delhi vide Registration No.4541 and 4542 in Additional Book No.1, Vol No.1353 on pages 134-136 and 137-138 on 19.07.1976 respectively.
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.3 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 16:58:41 +0530 Late Labh Kaur Khosla was ordinary resident of New Delhi and died intestate at New Delhi on 12.05.1990 and her husband Late Sh. Amar Nath Khosla also died/predeceased her in the year 1945 at Lahore, now in Pakistan. Out of the wedlock of Late Labh Kaur Khosla and Late Sh. Amar Nath Khosla, four sons namely Dr. Shori Lal Khosla, Shri Om Paraksh Khosla, Sh. Sham Lal Khosla and Sh. Iqbal Nath Khosla and two daughters namely Ms. Bimla Khosla and Ms. Kamlesh Khosla respectively were borne. During the life time of Late Smt. Labh Kaur Khosla, the eldest son Dr. Shori Lal Khosla died at New Delhi on 28.02.1982 and was survived by his widow Smt. Krishna Khosla and three sons namely Sh. Anil Kumar Khosla, Sh. Sunil Kumar Khosla and Dr. Deepak Khosla and a daughter Dr. Kamini Pruthi. Subsequently, Smt. Krishna Khosla died in intestate on 02.09.2009 at Gurgaon, Haryana and therefore defendants no.1 to 4 are only surviving legal heirs of Late Dr. Shori Lal Khosla. At the time of death of Labh Kaur Khosla, she was survived by three sons namely Om Prakash Khosla, Sh. Sham Lal Khosla, and Sh. Iqbal Nath Khosla and two daughters Mrs. Bimla Khosla and Ms. Kamlesh Khosla and legal heirs of predeceased son Late Dr. Shori Lal Khosla.
Two daughters of Smt. Labh Kaur Khosla namely Bimla Khosla and Kamlesh Khosla never married in life and remained spinster and died after the death of Smt. Labh Kaur Khosla on 05.10.1992 and 19.08.1999 at New Delhi. Thereafter, the second son of Late Smt. Labh Kaur Khosla namely Sh. Om Prakash Khosla died on 23.02.1993 at New Delhi followed by the fourth son Sh. Iqbal Nath Khosla who died on 02.06.1996 at New Delhi and the third son namely Sh. Sham Lal Khosla died on 25.11.1996 at New CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.4 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 16:59:07 +0530 Delhi.
Late Sh. Sham Lal Khosla was survived by his widow Nirmal Khosla and three daughters namely Ruma Khosla, Neeru Khosla and Priya Khosla and subsequently, Nirmal Khosla died intestate at New Delhi on 24.02.1998 followed by her daughter Ruma Khosla also in 1998 and as such, two daughters namely Neeru Khosla and Priya Khosla of Late Sh. Sham Lal Khosla are the only surviving legal heirs of Late Sh. Sham Lal Khosla. Late Sh. Om Praksh Khosla was survived by his widow Smt. Ram Piyari Khosla, the two sons namely Sh. Rakesh Khosla and Rajiv Khosla and three daughters namely Ms. Rita Sahni, Ms. Meenka Dhingra and Ms. Poonam Mitra. Subsequently, Ram Piyari Khosla died intestate on 23.03.2009 and her daughter Rita Sahni, wife of Sh. Ravinder Sahni, predeceased her on 02.05.2006. Rita Sahni is survived by her husband Ravinder Sahni and two daughters Ruchika and Reena, both are major in age. Only surviving legal heirs of Late Sh. O P Khosla are plaintiff, Rajiv Khosla, Meenka Dhingra, Poonam Mitra and legal heirs of deceased daughter Late Rita Sahni namely Ravinder Sahni, Ruchika and Reena.
Late Sh. Iqbal Nath died intestate at New Delhi and is survived by his widow Dr. Shakuntla Khosla and two sons namely Sh. Praful Khosla and Sh. Vipul Khosla. Since the two daughters of Late Labh Kaur Khosla died as spinster, therefore, the estate of Late Labh Kuar Khosla is divided in four equal shares i.e. amongst the four sons i.e. ¼ th share each and/or their respective legal heirs. Plaintiff and defendants no.5, 7 and 8 are the surviving sons and daughter of late Sh. Om Praksh Khosla and defendant no.6(a), 6(b) and 6(c) are the legal heirs of the deceased daughter Late Rita CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.5 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 16:59:25 +0530 Sahni on whom her share would devolve. Therefore, plaintiff is entitled to 1/5 th share of the ¼ th share of his Late Father Om Prakash Khosla i.e. 1/20th share of the suit property. Defendants no.5, 7 and 8 being legal heirs of Late Sh. O P Khosla are also entitled to 1/20th share each whereas defendant no.6(a), 6(b) and 6(c) are entitled to 1/60th share each being legal heirs of Late Rita Sahni.
Similarly, since Late Dr. Shori Lal Khosla is survived by his three sons and daughter, therefore, they are entitled to 1/16th share each in the estate of Late Labh Kaur Khosla i.e. the suit property. Since Late Sh. Iqbal Nath died intestate and is survived by his window and two sons therefore they are entitled to 1/12th share each in the suit property.
Late Sh. Sham Khosla is survived by two daughters therefore they are entitled to 1/8th share each in the suit property. Defendant no.9 and 10 are in the use and occupation of the suit property and have been letting out the same from time to time to various tenants and have been usurping the rent realized by them to their own benefit and till date, they have never disclosed or furnished and/or rendered the account despite various personal requests and demands made by the plaintiff and other defendants. Since Late Smt. Labh Kaur Khosla, the perpetual lessee of the suit property died intestate, without making any partition leaving behind the parties to the suit and representatives to inherit her estate and, thus, the parties to the present suit are the owners of the suit property and they are entitled to inherit the same of their respective fathers in equal shares.
The suit property is presently in use and occupation of the defendants no.9 and 10 and are enjoying the suit property with the CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.6 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 16:59:43 +0530 consent of other legal heirs as they were unmarried daughters of Late Sh. Sham Lal Khosla and they have no other property to live in, therefore, keeping in view their financial conditions, all the legal heirs agreed that the said uncle be accommodated till his daughters are married by the said Late Sh. Sham Lal Khosla. Defendant no.9 was only married and defendant no.10 is still unmarried at the time of filing of the suit but their attitude has become indifferent and have been threatening to implicate the plaintiff and other defendants in false cases in case any of the legal heirs demand any right, title and interest in the suit property and the said defendants are keeping paying guests in the suit property and are earning huge amount by keeping students and employed persons and are charging them heavily and are earning Rs.30,000/- per month and are using and appropriating the same to their own benefit and maintenance.
Due to passage of time, the behavior and attitude of defendant no.9 and 10 have become indifferent, mala fide and greedy who want to usurp the entire suit property to their advantage and are not permitting any person to enter into the suit property. Defendant no.9 and 10 are dealing with certain builder for collaboration agreement without the consent and knowledge of the plaintiff and other defendants for the construction of multi storied building upon the suit property. Plaintiff along with defendants no.1 & 5 visited the defendants no.9 and 10 on 20.11.2010 and objected to deal with property dealers/builders and further requested the defendants no.9 and 10 for partitioning the suit property amongst the plaintiff and defendant in accordance with their respective right and share in the suit property. Defendants no.9 and 10 instead agreeing to the same did not let CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.7 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 16:59:57 +0530 the plaintiff enter the suit property and rather started threatening the plaintiff and defendant no.1 & 5 of dire consequences in case the plaintiff or any one demand/claim any right, title and interest in the suit property and further threatened to implicate such person in false legal/criminal complaints.
Defendant no.9 and 10 further refused to partition the suit property and give any right, title or interest in the suit property and further claimed that since they are in possession of the suit property and therefore they are at liberty to deal with the suit property in the mode and the manner of the said defendants no.9 and 10 deemed fit and proper.
Plaintiff and defendant no.1 to 5 and 12 again visited the defendant no.9 and 10 and during their next visit on 17.04.2011, they requested the defendant no.9 and 10 not to make any unauthorized and illegal construction in the existing structure of the suit property and also not to enter into any contract or collaboration agreement with any builder.
Despite repeated requests of the plaintiff and the defendant no.1, 5 and 12, defendants no.9 and 10 were adamant to enter into collaboration agreement with builders for the illegal and unauthorized construction of the suit property without the consent of the plaintiff and other defendants.
Defendants no.9 and 10 have no right, title or interest to create third party interest in the suit property as the suit property is still joint and has not been partitioned by metes and bounds. They are in active connivance with each other in their illegal designs and acts of entering into collaboration agreements with builders for the construction of multi storied property over the suit property in order to usurp the whole property to their advantage and deprive CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.8 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:00:17 +0530 the plaintiff and other defendants of their respective right and share in the suit property.
The suit property is old single storeyed building having five rooms, kitchen, toilet, store etc on the ground floor with open terrace on the front and plaintiff in exercise of his right does not want to continue the suit property as a joint property of the parties any further and claimed partition of the suit property by metes and bounds.
Plaintiff is having 1/20th share in the suit property and has also requested all the defendants to partition the suit property by meets and bounds declaring share of each of the parties in the suit property but defendant no.9 and 10 have refused to pay any heed to the request of the plaintiff. Defendant no.9 and 10 be also restrained permanently from making any addition or alteration, unauthorized construction in the suit property and further restrained them from creating any third party interest either by way of sale, mortgage/collaboration and lease etc of the suit property in any manner.
3. Written statements were filed by defendant no.1, 2, 5, 7, 8, 9, 10, 11, 12 and 13. Defendant no.3 and 4 adopted the written statements of defendant no.1 and 2 vide order dated 15.12.2011. By these written statements, except for defendant no. 9 and 10, other defendants have accepted the claim of the plaintiff and they also sought their proportionate share in the suit property.
4. Defendant no.9 and 10 combated the present suit by filing the written statement as under:
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.9 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:00:32 +0530 The present suit is an abuse of the process of law as the same has been filed with malafide intention and in connivance with other defendants by not fully disclosing or mentioning about the existence of the fact of Late Smt Labh Kaur Khosla having four daughters and four sons.
There were four daughters namely Ms. Swarn Kanta, Ms. Raj Rani, Ms. Bimla and Ms. Kamlesh and four sons namely Mr. Shori Lal, Mr. Om Prakash, Mr. Sham Lal and Mr. Iqbal Nath to Late Smt. Labh Kaur Khosla (paternal grandmother of defendant no.9 and 10). In the year 1947, the partition of the country took place and a separate country by the name of Pakistan was carved out and as a result, the Hindu population living in newly created Pakistan migrated to India.
Smt. Labh Kaur Khosla and her children except her two sons Sh. Shori Lal and Sh. Om Prakash migrated to India and were accorded refugee status. Sh. Shori Lal was not a refugee as he was serving in Madhya Pradesh Government even before partition and Sh. Om Prakash was also not a refugee as he was working in Ambala even before partition. Both these sons were married and were also working and supporting their own family. The family was being supported and maintained only by Sh. Sham Lal and the two sons namely Sh. Shori Lal and Sh. Om Prakash did not contribute anything to support the family and also did not provide any financial support. The youngest son Sh. Iqbal Nath was still studying and was sent to Ambala for further studies whose expenses were also being borne exclusively by Sh. Sham Lal i.e. father of defendant no.9 and 10. At that time, the Government of India laid out conditions for allotment of houses to the refugee migrated from Pakistan who CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.10 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:01:22 +0530 fulfilled the following criteria:-
A. Refugees migrated from Pakistan with registration certificate; B. Should be ration card holder confirming their stay in Delhi; C. Not owing any property in Delhi;
D. Five persons and above were allotted 200 sq yards house and below five persons 100 sq yards house.
The suit property was to be allotted in the name of five members after fulfilling the criteria and had refugee status namely Late Smt. Labh Kaur Khosla, Son Sh. Sham Lal, daughter Bimla, daughter Kamlesh and one of the two daughters namely Swaran Kanta or Rajrani, on a price fixed by the Government. Smt. Labh Kaur Khosla and her daughters had no source of money to purchase the house and, therefore, Mr. Sham Lal consulted his brothers but they showed no interest to purchase the suit property and expressed their inability since they had to look after their own families.
Sh. Sham Lal agreed to buy the suit property from his own sources as his other brothers and sisters refused to provide any funds for the same and thereafter, the whole family had then agreed that since Sh. Sham Lal was to provide the funds, then he will be the only exclusive owner of the suit property without any claim from any one else. As per the government of India policy relating to the allotment of the property to refugee, the house could be allotted only in one name, and thus the name of Mrs. Labh Kaur was put forward by Mr. Sham Lal out of love and affection, respect and regard since she was his mother and, therefore, the title documents were executed in her name by the Government.
Mr. Sham Lal Khosla made all the payment of suit property to the Government and none other person had contributed even a single penny towards the purchase the suit property, otherwise suit property could not CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.11 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:01:36 +0530 be bought. Ever since then the suit property has been continuously used, enjoyed, possessed and owned by Mr. Sham Lal and after his death by his successors and now defendant no.9 and 10 as absolute owners of the suit property.
Everyone in the family i.e. Mrs. Labh Kaur Khosla and her sons and daughters always recognized this status of ownership of the suit property of Mr. Sham Lal and his family and as a dutiful son Mr. Sham Lal always took great care for his mother Mrs. Labh Kaur for whom he had great love and affection and she always resided with him till her death on 12.05.1990.
The other sons did not contribute anything for maintenance and/or support their mother in her life and the other unmarried sisters Ms. Bimla (who died intestate on 5.10.1992) and Ms. Kamlesh (who died on 19.08.1999) also lived with Mr. Sham Lal and his family in this house, till their death and the other daughters namely Swarn Kanta and Raj Rani had already predeceased their mother Mrs. Labh Kaur long back being issue less.
For a short period Mr. Shori Lal, Mr. Om Prakash and Mr. Iqbal Nath and their family came to stay in the suit property and they were permitted to stay only out of love and affection but were asked by Sham Lal and his mother Mrs. Labh Kaur Khosla to leave the property as the suit property was the exclusive property of Mr. Sham Lal and thus they left & shifted from the suit property as the said status ownership of the suit property was always known & acceptable to them and this happened sometimes in 1981-82 when legal heirs of Shori Lal left and in the year 1988 when Mr. Om Prakash Khosla and Mr. Iqbal Khosla and their families left.
Mr. Sham Lal had then made further construction by adding three more rooms to the suit property out of his own funds and sources without CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.12 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:01:54 +0530 any contribution from any body and Shri Sham Lal till his death on 25.11.1996 and thereafter his family and successors continue to use, occupy and possess the suit property as exclusive, absolute and only owners of the same.
Mr. Sham Lal's wife Mrs. Nirmal Khosla expired on 24.02.1998 and they were survived by their three daughters namely Ruma Khosla (who has since expired on 18.07.2002), Neelu Khosla {defendant no.9} (3) Priya Khosla {defendant no.10}. Ms. Kamlesh expired on 19.08.1999 and immediately after the death of Ms. Kamlesh, the last living first generation child of Mrs. Labh Kaur, an attempt was made by some of the defendants to dispossess the three daughters of Mr. Sham Lal and the same was resisted and the police initiated action before the Special Executive Magistrate at Patiala House Courts and, thus, these persons were prevented from their attempt.
The said Ms. Ruma Khosla and defendant no. 9 and 10 had categorically mentioned in the proceedings that they were the exclusive owners as successors of their father who was the exclusive owner of the suit property having provided all the funds without any contribution from any other person and these proceedings came to an end as the Presiding Officer ultimately held that it was a civil matter. For all these years since the acquisition of the suit property, Mr. Sham Lal and his family had continuously always used and occupied the suit property as only exclusive owners of the same and Ms. Kamlesh had sensed and / or had apprehensions regarding the intentions and desires of the children of her brothers and, therefore, she had then executed a Will dated 12.12.1998 in order to prevent any wrong being done to Defendant No. 9 and 10 and their now deceased sister Ms. Ruma and in the said Will, she has fully narrated that the suit property was the exclusive property of these three sisters as their father Mr. Sham Lal had made the CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.13 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:02:13 +0530 full and final payment of the entire house.
The plaintiff has deliberately and intentionally not disclosed the said Will of Ms. Kamlesh. Thereafter, another attempt was made by some of the defendants to some how get the mutation of the suit property in the office of the Land and Development office by some letter dated 18.11.2009. The L& D Office vide their letter dated 06.01.2003 communicated and asked the defendant no.9 and 10 and their deceased sister Ms. Ruma to furnish documents.
Defendant no.9 and 10 replied to the same vide their letter dated 22.01.2003 and clarified their stand and requested them not to mutate the said property and as per letter dated 22.04.2003 of the L&D Office, the request of the defendant no.9 and 10 has been acceded to. Plaintiff has deliberately concealed the existence of two more sisters namely Swarn Kanta and Raj Rani and has tried to mislead. The plaintiff has not come with clean hands and, therefore, the present suit is liable to be dismissed on this account alone. The plaint does not disclose source of funds for the acquisition of the suit property and the plaintiff and the predecessors of all the parties were fully aware that all the funds were solely and exclusively provided by Mr. Sham Lal and that he is the exclusive and only owner of the suit property.
The present suit does not seek any relief / prayer for declaration on the title thus, the present suit is liable to be dismissed on this ground alone as the present proceedings cannot continue without seeking a relief of any declaration of title.
The present suit has been filed after Mrs. Labh Kaur all her first generation children have expired so that the truth may be concealed and the present suit suffers from latches and long delays and is therefore barred by limitation and the plaintiff has himself conceded that the defendant no.9 and 10 are in exclusive possession of the property and CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.14 of 57 NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:02:25 +0530 have been using and utilizing the same for their own benefit. Further, the present suit has not been properly valued for the purpose of valuation and court fees as the value of the suit property was Rs.5 crore at the time of institution of the suit.
On behalf of plaintiff, replication came to be filed against the written statement of defendant no.5, 9 and 10. Affidavit of admission/denial of documents was also filed on behalf of plaintiff as well as contesting defendant no.9 and 10.
5. On the settlement of the issues, both the parties were extensively heard pursuant whereof this Court deliberated upon the material proposition of law and fact and vide detailed order on 10.04.2023 issue of ownership of Sh. Sham Khosla and alleged adverse possession of defendant no.9 and 10 were decided and remaining issues were framed:
Issue no.1: Whether the Will dated 12.12.1998 is a legally executed last Will of Smt. Kamlesh Khosla, as alleged. If yes, its effect thereof on the shares of plaintiff and other parties? OPD 9 & 10.
Issue no.2: Whether the suit of the plaintiff is barred by limitation, as alleged? OPD 9 & 10.
Issue no.3: Whether the plaintiff has undervalued the suit property, the property being worth more than Rs.5 crore on the date of the suit and has not paid the appropriate court fees, as alleged? OPD 9 and 10.
Issue no.4: Whether the plaintiff is entitled to a decree of partition in respect of the suit property, as prayed for? OPP (Deleted vide order dated 25.04.2023). Issue no.5: Relief.
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.15 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:02:39 +0530
6. However, vide further order dated 25.04.2023, issue no.4 stood deleted and issue no.1 was re-framed as already noted above as in the order dated 10.04.2023, this Court has already given its finding that the suit property is liable to be partitioned subject to the outcome of other issues. Thereafter, since the burden to prove the issues was cast upon defendant no. 9 and 10, they were called upon to lead evidence first.
7. Defendant no.10 got herself examined as DW-1 vide her affidavit Ex.DW-1/A and who also relied upon the Will dated 12.12.1998 of Ms. Kamlesh Khosla Ex.DW-1/1, the lease deed dated 22.04.1965 Ex.DW- 1/2 and conveyance deed dated 22.04.1965 Ex.DW-1/3 (Original Seen and Return), two registration slips, one ground rent receipt, and the letter regarding the transfer of suit property Ex.DW-1/4 (Colly) (Original Seen and Return), electricity bill in the name of Neetu Khosla Ex.DW-1/5, water bill in the name of Priya Khosla Ex.DW-1/6 and house tax no due certificate Mark A (though, in the affidavit, it was marked as Ex.DW-1/7 and an objection was raised with regard to mode of proof of the said certificate).
8. DW-1 was extensively cross-examined and was finally discharged on 26.04.2023 and matter was then posted for further defendants evidence, however, 02.05.2023 Ld. Counsel for defendant no. 9 and 10 canvassed that no further defendant's evidence was to be led and defendant no.9 would rely upon the evidence of defendant no.10 only. Defendant's evidence was then formally closed.
9. In rebuttal, plaintiff got examined himself as PW-1 vide his affidavit Ex.PW-1/A, who was cross-examined on behalf of defendant no. 9 and 10. Plaintiff also formally closed his evidence thereafter, CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.16 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:02:55 +0530 paving the path for final arguments.
10. On behalf of plaintiff, Sh. Ankur Mahendro, Ld. Counsel addressed the arguments and on behalf of defendant no.9 and 10 Sh. Anshul Gupta advanced the arguments. I shall dwell upon the arguments in the discussion indicated infra. My issue wise findings are herein under.
11. At the outset, the objection raised during examination in chief of DW-1 to the marking of documents as exhibits i.e. electricity bill Ex.DW-1/5, water bill Ex.DW-1/6 and house tax no due certificate Mark A (in the affidavit, marked as Ex.DW-1/7), is found to be sustainable and in the absence of proper and legal mode to prove these documents, they will not be read in evidence.
12. Issue no.3: Whether the plaintiff has undervalued the suit property, the property being worth more than Rs.5 crore on the date of the suit and has not paid the appropriate court fees, as alleged? OPD 9 and 10.
12.1 The burden to prove this issue was upon defendant no.9 and
10. The plaintiff, in the plaint, has valued the present suit for the decree of partition of the suit property at Rs.2 crore which is on the basis of estimated value of the suit property at the time of institution of the suit in May, 2011. As against this, on behalf of defendant no.9 and 10, it was claimed that the plaint has not been property valued as the suit property was more than Rs.5 crore. Defendant no.10/DW-1 in her affidavit Ex.DW-1/A has testified that value of the suit property was more than Rs.2 crore even in 2011. However, there is no material placed on record by defendant no. 9 and 10 to substantiate this averment. The defendants CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.17 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:03:33 +0530 could have supplemented this averment with the report of any valuer to establish that the value of the suit property was more than 2 crore even in 2011, but that was not done. It is also observed that at the stage of final arguments, on behalf of defendant no. 9 and 10, an application came to be filed under Order 26 Rule 9 read with Order 18 Rule 18 CPC calling upon the Court to appoint an authorized valuer in order to ascertain the value of the suit property in the year 2011, which application was dismissed vide separate order 19.05.2023. Ld. Counsel for the plaintiff, on the aspect of valuation of the suit, had argued that the valuation of Rs.5 crore sought to be ascribed to the suit property is without any basis and it is not the case herein that the plaintiff has under valued the suit so as to embark upon forum shopping as in the year 2011, the suit property was assigned the valuation of Rs.2 crore which was the approximate market value at that time and on that basis the suit was instituted before High Court of Delhi and it is only after the enhancement of the pecuniary jurisdiction of the District Courts that the suit came to be transferred to this Court. On this foundation, it is argued that plaintiff in any manner cannot be said to have acted with mala fide so as to under value the suit property. The view put forth by Ld. Counsel for the plaintiff appears to be tenable and unassailable as at the time of institution of this suit, this was not the endeavor on the part of the plaintiff to assign such valuation so as to bring it within the ambit of this Court. Rather, the plaintiff has valued the suit property magnanimously and chose the then right forum which was High Court of Delhi and it was later pursuant to the administrative orders and enhancement of pecuniary jurisdiction of the District Courts that the suit came to be transferred to this Court.
12.2 In Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan & Ors., High Court of Delhi, dated 04.03.2011, it was enunciated that in order to CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.18 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:03:46 +0530 ascertain whether the suit has been properly valued for the purpose of court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the defendants.
12.3 The suit property is measuring 200 sq. yards situated at Jangpura Extension, New Delhi and the suit was instituted in the year 2011, therefore, in the absence of any contrary material placed on record on behalf of defendants, valuation of Rs.2 crore ascribed to the suit property by the plaintiff cannot be censured.
12.4 The judgments relied upon by Ld. Counsel for Defendant no.9 and 10 in case titled as Sujir Keshav Nayak Vs. Sujir Ganesh Nayak, (1992) 1 Supreme Court Cases 731, Abdul Hamid Shamsi Vs. Abdul Majid and Ors, (1988) 2 Supreme Court Cases 575, Hardeep Singh Vs. Baldev Singh & Ors., CM (M) No. 476 of 2013, Anu Vs. Suresh Verma & Ors, High Court of Delhi, date of decision 12.07.2011, are facts centric and of no help to them.
This issue is accordingly decided in favor of the plaintiff and against defendant no.9 and 10.
13. Issue no.1: Whether the Will dated 12.12.1998 is a legally executed last Will of Smt. Kamlesh Khosla, as alleged. If yes, its effect thereof on the shares of plaintiff and other parties? OPD 9 &
10. 13.1 The burden to prove this issue was upon defendant no.9 and 10 who are the propounders of the Will of Smt. Kamlesh Khosla dated 12.12.1988.
13.2 At the outset, I deal with one of the ambitious contention of CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.19 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:04:05 +0530 Ld. Counsel for defendant no.9 and 10 that this Court cannot adjudicate on the validity of the Will, not being the probate Court (reliance is placed upon Gurmeet Singh Chopra Vs. Taruna Chopra and Ors., MANU/DE/0845/2010). I do not concur with the said plea as it is a settled legal position that in NCT of Delhi, Will is not required to be probated and, thus, the jurisdiction of the Civil Court to adjudicate upon the validity of the Will cannot be said to be discarded (reference can be made to the judgments relied upon by Ld. Counsel for the plaintiff in Kanta Yadav v. Om Prakash Yadav, (2020) 14 SCC 102, Winifred Nora Theophilus v. Lila Deane, 2001 SCC OnLine Del 644, Rajan Suri v. State, 2005 SCC OnLine Del 1290, Pradeep Bhalla v. Sangeeta, 2007 SCC OnLine Del 310).
13.3 Moving further, in the written statement, it is the stand of defendant no.9 and 10 that Smt. Kamlesh Khosla had executed a Will dated 12.12.1988 wherein she has fully narrated that the suit property was the exclusive property of the three sisters (2 of them being defendant no.9 and 10 and the third sister having already expired), as their father Sh. Sham Lal had made the full and final payment of the suit property. Defendant no. 9 and 10 have sought to prove the said Will by the testimony of defendant no.10, who in her affidavit Ex.DW-1/A, has testified on similar lines as in the written statement in regard to execution of the Will. However, to prove the execution, DW-1 has deposed that Smt. Kamlesh Khosla had executed the Will in the presence of DW-1 and in her presence, two witnesses namely Mr. Petu Frances, who at that time was resident of 834, Sunlight Colony and Ms. June Delton, who was at that time resident of O 17 B, Jangpura Extension, New Delhi but unfortunately these two witnesses have already died. DW-1 got marked the Will as Ex.DW-1/1 and identified the signatures of CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.20 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:04:18 +0530 Smt. Kamlesh Khosla at point A and A-1 and signatures of two witnesses at point B and C. 13.4 Section 68 of Indian Evidence Act deals with proof of execution of a document required by the law to be attested and as per this provision, in the case of a Will, if there is an attesting witness alive and subject to the process of the Court and capable of leading evidence, then, the Will can be proved only when, one of the attesting witnesses is called for proving its execution. Further, it is also a settled law that, in such cases, at least one attesting witness must not only be examined to prove attestation by him but he also must prove the attestation by the other attesting witness.
13.5 The Supreme Court in V. Kalyanamswamy (D) by LRs & Anr. Vs. L. Bakthavatsalam (D) by LRs & Ors., date of decision 17.07.2020, has observed that Section 69 of the Evidence Act manifest a departure from the requirement embodied in Section 68 of the Evidence Act, the relevant observations are made in paragraph 70 as under:
"70. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.21 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:04:29 +0530 which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness."
13.6 The Court further observed that in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is that the attestation of one of the attesting witness is in his written handwriting. Paragraph 71 is reproduced as under:
"71. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language CIVIL APPEAL NOS.1021-1026 OF 2013, ETC. of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act."
13.7 In the light of the aforesaid legal position, since in the instant case, CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.22 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:04:41 +0530 it is the claim of defendant no.9 and 10, as well as in the evidence of DW-1, that both the attesting witnesses to the Will have expired, Section 69 of the Evidence Act would kick in and the defendants were required to prove that the attestation of one of the attesting witness was in his/her hand writing. But before that, it was imperative for the defendants to have conclusively established on record that both the witnesses to the Will namely Mr. Petu Frances and Ms. June Delton have expired. Defendants have failed to place on record any death certificate of these witnesses or any material which could substantiate the factum of their death. In this regard, I allude to the observations of Madras High Court in N. Durga Bai Vs. Mrs. C.S. Pandari Bai, date of decision 27.02.2017, in para 18 which is as under:
"18. When there is no attesting witness found, then Section 69 of the Indian Evidence Act comes into play, before resorting Section 69 of Evidence Act plaintiff should establish either factum of death of attesting witnesses or their non availability by convincing evidence. Then in the event of the attesting witnesses do not support the will, propounder can resort to Section 71 of the Indian Evidence Act for proving the document by other mode. Only by these procedures, the Will can be admitted in evidence. Without establishing the execution and attestation of will Ex.P1 same cannot be admitted in evidence. Therefore, this Court is of the view that since the document in question Ex.P1 will has not been proved in the manner known to law, and the same cannot be used as an evidence, hence the question of deciding its truth and genuineness does not arise at all. Accordingly, this Court is of the view that no discussion is required with regard to the validity and genuineness of the will.
Accordingly, the issues are answered against the plaintiffs."
13.8 Clearly, there is no convincing evidence on record, except the oral statement of DW-1, that both the attesting witnesses to the Will have CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.23 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
+0530 2023.05.24 17:04:54 expired. Now to prove the execution of the Will, though DW-1 has claimed, that she was present at the time of execution of the Will by Smt. Kamlesh Khosla and the two attesting witnesses namely Mr. Petu Frances and Ms. June Delton, but there is no such pleading in this regard in the written statement. It is for the first time that DW-1 has deposed of she being present at the time of execution of the Will. Though DW-1 has claimed that she recognized the signatures of the witnesses, but this deposition of DW-1 appears to be an afterthought and a make believe statement as if she were to be present at the time of execution of the Will, what prohibited her from being introduced as one of the attesting witnesses to the Will. The legislature has incorporated the specific provision for proving the execution of the Will only by the attesting witnesses given the consequences that flow from it, and if the attesting witnesses are alive, either of them can be summoned to prove the execution of the Will, but in case both the attesting witnesses are dead, attestation by at least one of the attesting witness can be proved to be in his or her handwriting, and which can be done by calling any of the family members of those witnesses who could be aware of their handwriting, but in the instant case, in the cross-examination, DW-1 acknowledged that she did not make any efforts to enquire about the whereabouts of the children of one of the attesting witnesses namely Petu Frances. It is convenient for a party to proclaim that he or she has been a testament to the execution of a Will, if he or she stands to be one of the beneficiaries, but in that case, the Court has to be wary of believing such statements by careful analysis, and if any doubtful circumstances are noted, which may dent the testimony of the concerned person, the Court may reject such statement and would treat the Will having not been proved as per law.
This issue is, thus, decided against defendant no.9 and 10 and in CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.24 of 57 NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:05:05 +0530 favor of the plaintiff.
14. Issue no.2: Whether the suit of the plaintiff is barred by limitation, as alleged? OPD 9 & 10.
14.1 The burden to prove this issue was upon the defendant no. 9 and
10. On the aspect of limitation, Ld. Counsel for defendants have led his tirade against the plaintiff by vehemently arguing that the present suit is time barred in view of the categorical statement of PW-1 that he first approached defendant no.9 and 10 in the year 1999 when he was informed of him having no right in the suit property and it is at that time that the clock had started and by virtue of Article 65 of the Limitation Act, the 12 years period would have expired and, thus, the present suit is time barred. In order to strengthen his arguments, Ld. Counsel for defendant no. 9 and 10 has relied upon the ensuing judgments :
Rama Kant Sharma Vs. State and Ors., MANU/DE/0396/2004; Balasaheb Dattoba Pawar (Deceased) Thru. Lr and Another Vs. Lalasaheb Dattoba Pawar and Ors, 2022 SCC OnLine Bom 84; Menharan Vs. Ghanaram, MANU/CG/0233/2014; Tara Chand Gaur Vs. Satish Chand Sharma & Anr., RFA No. 906/2016;
Jamila Khatoon and Ors. Vs. Saidul Nisa & Ors., MANU/DE/0089/1976.
14.2 On the contrary, Ld. Counsel for plaintiff has countered the aforesaid submissions by arguing that though PW-1 has specified that he had visited defendant no.9 and 10 in 1999, but there was no specific question as to date or month and it was only in 2010 that the plaintiff asserted his right for partition of the suit property and the present suit CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.25 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:05:16 +0530 having been instituted in May 2011, the same cannot be said to be time barred. Ld. Counsel also argued that otherwise also the cause of action for instituting the partition suit is a recurring one and till the time the co-
sharer choses to keep the property undivided, the limitation period cannot be said to commence. To embolden this view, Ld. Counsel for the plaintiff has referred to the following judgments:
M.K. Govil Vs. Harish Chand Govil & Ors, 2017 SCC OnLine Del 6954;
Renu Mathur Vs. Uma Narula, 2018 SCC OnLine Del 9679; Jai Devi Vs. Jodhi Ram, 1970 SCC OnLine Del 101; Deepak Kaur Vs. S. Hari Simran Singh, 2019 SCC OnLine Del 7487;
Smt. Anita Vig & Anr Vs. Sh. Joginder Khanna & Ors, Delhi High Court, CS (OS) 323/2017;
Ganesh Prasad Vs. Rajeshwar Prasad, 2023 SCC OnLine SC 256; Monsharam Chakravarty Vs. Gonesh Chandra Chakravarty, 1912 SCC OnLine Cal 120;
Shakti Bhog Food Industries Limited Vs. Central Bank of India & Another, 2020 17 SCC 260;
Muddasani Venkata Narsaiah V. Muddasani Sarojana, (2016) 12 SCC 288;
Shoki Chaudhary V. Mukesh, 2014 SCC OnLine Del 6929; Mst. Qaiser Jahan Begum V. Messers Ramzan Karim & Sons, 1998 SCC OnLine Del 250;
Vinod Singh V. Phutori Devi 2006 SCC OnLine Del 182.
14.3 At the outset, I deem it expedient to highlight that the issue of limitation was also flagged on behalf of the defendants by way of CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.26 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:05:28 +0530 application under Order 7 Rule 11 CPC, wherein, I gave the prima facie finding on the basis of the judgment of Supreme Court of India in Vidya Devi @ Vidya Pati Vs. Prem Prakash & Ors., AIR 1995 SC 1789 that the legislature has not the prescribed any period of limitation for filing the suit for partition and since it is a recurring cause of action, one of the co-sharers can seek partition at any point of time. On this premise as well as on the settled legal proposition that the question of limitation is a mixed question on law and fact, the suit was prima facie not found to be hit by limitation. Needless to say, while deciding application under Order 7 Rule 11 CPC, I could not have traversed beyond the plaint and from the plaint, though the cause of action was shown to have arisen firstly on the death of Late Smt. Labh Kaur Khosla on 12.05.1990 and thereafter on other occasions, and finally it is shown to have arisen on 17.04.2011 when plaintiff alongwith defendant no.1, 5 and 12 claimed to have visited the suit property and, thus, on that basis, the application under Order 7 Rule 11 CPC came to be trashed.
14.4 But, we are now embarking upon the final adjudication wherein the plaint, the written statement, replication thereof, evidence and finally the legal position governing the law of limitation are to be cumulatively examined and analyzed to arrive at the conclusion whether the suit of the plaintiff is barred by law of limitation or not.
14.5 I will start from reproducing the relevant paragraphs from the plaint, written statement and the replication, which have a bearing on the issue of limitation. In the plaint, germane paragraphs are as under:
"24. Only defendant no.9 is married and defendants no.10 is still unmarried but on date their attitude has become indifferent and have been threatening to implicate the plaintiff and other defendants in false cases in case any of CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.27 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:05:38 +0530 the legal heirs demand any right, title and interest in the suit property and it has been noticed that the said defendants are keeping paying-guests in the suit property and are earning huge amount by keeping students and employed persons as paying guest and are charging them heavily and are earning Rs.30,000/- per month and are using and appropriating the same to their own benefit and maintenance.
25. In fact defendants Nos. 9 and 10 in order to usurp the entire property they have also made certain unauthorized and illegal construction/addition and alteration in the suit property without the consent of the plaintiff and other defendants, in order to enhance their earnings. Needless to say that said defendants are not sharing the said earning with other persons who are entitled to the same, nor are tendering account of the said earnings.
26. That due to passage of time, the behavior and attitude of defendant no.9 and 10 have become indifferent mala fide and greedy and want to usurp the entire property to their advantage and are not permitting any person to enter into the suit property. Further it has been reliably learnt that the defendants no. 9 and 10 are dealing with certain builders for collaboration agreement without the consent and knowledge of the plaintiff and other defendants for the construction of multi storied binding upon the suit property.
27. The plaintiff along with defendants 1 and 5 visited the defendants no. 9 and 10 on 20.11.2010 and objected to deal with property dealers/builders and further requested the defendants no. 9 and 10 for partitioning the suit property amongst the plaintiff and defendant in accordance with their respective right and share in the suit property.
28. The defendants no. 9 and 10 instead agreeing to the just and legitimate demand of the plaintiffs and defendants 1 and 5 did not let the plaintiff enter the house and rather started threatening the plaintiff and the defendants 1 and 5 of dire consequences in case the plaintiff or any one demand/claim any right, title and/or interest in the suit property and further threatened to implicate such person in false legal/criminal complaints.
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.28 of 57
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29. The defendants no.9 and 10 further refused to partition the property and/entertain and give any person any right, title and/or interest in the suit property and further claimed that since they are in possession of the suit property so they are at liberty to deal with the suit property in the mode and the manner the said defendants nos. 9 and 10 deemed fit and proper.
30. The plaintiff and the defendant nos. 1 to 5 and 12 again visited the defendants 9 and 10 and during their next visit on 17 th April, 2011 and requested the defendants nos. 9 and 10 not to make any unauthorized and illegal construction in the existing structure of the suit property. And further required the said defendants not to enter into any contract or collaboration agreement with any builder.
39. The cause of action for filing the present suit firstly arose on the death of Late Labh Kaur Khosla, who died on 12.05.1990 and thereafter on the death of Late Om Prakash Khosla, who died on 23.02.1993 cause of action again arose on 02.06.1996 when Late Iqbal Nath Khosla died and further arose on 25.10.1996 when Late Iqbal Nath Khosla died and again arose on 25.10.2010 when defendants no. 9 and 10 in collusion with each other tried to enter into collaboration agreement for construction of unauthorized building upon the property in dispute and threatened to create third party interest. The cause of action lastly arose on 17.04.2011 when the plaintiff and defendant nos. 1, 5 and 12 again visited the property in question and requested the defendant nos. 1 and 10 to desist from carrying out unauthorized and illegal constructions and the said defendant refused to heed to such request. The cause of action is continuing and subsisting."
14.6 The pertinent paragraphs, as culled out from the written statement of defendant no. 9 and 10, is as under:
"xiv. For a short period Mr. Shori Lal, Mr. Om Prakash and Mr. Iqbal Nath and their family came to stay in this house. They were permitted to stay only out of love and affection but were asked by Mr. Sham Lal and his CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.29 of 57 NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:06:11 +0530 mother Mrs. Labh Kaur to leave the property as this property was the exclusive property of Mr. Sham Lal and thus they left and shifted from this house as the said status & ownership of the suit property was always known & acceptable to them and this happened sometimes in 1981-82 when Lr's of Shori Lal Left and in the year 1988 when Mr. Om Prakash Khosla and Mr. Iqbal Khosla and their families left. Pertinent to mention that Mr. Sham Lal had then made further construction by adding three more room to the 'Suit Property' out of his own funds and sources without any contribution from any body. Shri Sham Lal till his death on 25.11.1996 and thereafter his family and successors continue to use occupy and possess the suit property as exclusive, absolute and only owners of the same.
xx. The present suit has been now belatedly filed with so much delay with an idea to take benefits not due to them. The present suit is thus improvisation upon facts and the plaintiff has arm twisted the same in order to assert his false and on existence claim upon 'Suit Property'.
14.7 In the replication on behalf of plaintiff, the relevant extract touching on the aspect of limitation is as under:
"3. .....As already stated that since the family was growing in size, accordingly, the suit property was not sufficient to accommodate and the three sons namely Late Shori Lal, Om Prakash and Iqbal Nath had acquired out of their own savings their respective property and accordingly they decided to shift to their respective property and further decided to allow Late Sham Lal to remain in property as he could not afford to built and acquire any property of his own and had there grown up unmarried daughters till such time the daughters of Late Sham Lal are married. It is submitted that the family of Late Shori Lal and Om Prakash lived in the suit property as a joint family and there was a common uses. It is vehemently denied that Late Sham Lal make any contribution in the purchase of the suit property. It is submitted that after the death of CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.30 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:06:23 +0530 Late Sham Lal and his wife and other legal heirs approach the answering defendants for portioning the property to which the answering defendants took it offensively and lodged a false complaint against the persons who approached for partitioning the property which complaint was rejected by the police officials...."
14.8 Before delving into further dissection of the pleadings of the parties on the issue of limitation, let us analyze the position of the law qua the suit for partition, whether such suits are governed by any of the Article in the Schedule of Limitation Act, alongside various case laws of the High Courts and the Supreme Court. First, I would initiate with the case laws relied upon by Ld. Counsel for the Plaintiff, who has eloquently and vociferously, pleaded that the suits for partition have a recurring cause of action and there is no limitation prescribed in the Limitation Act. In M.K. Govil Vs. Harish Chand Govil & Ors (Supra), Ld. Counsel for plaintiff has referred to paragraph 10, 13 and 14 of the judgment to hammer home the point of recurring cause of action. Thus, paragraphs are reproduced as under:
"10. On enquiry, as to where is the plea in the written statement of the defendant No.2 of, possession of the defendant No.2 being adverse to the plaintiff, the counsel for the defendant No.2 draws attention to Article 110 of the Schedule to the Limitation Act which provides limitation of 12 years commencing from the date when the exclusion becomes known to the plaintiff, for a person excluded from a joint family property to enforce a right to share therein.
13. No merit is found in the contention of the counsel for the defendant No.2 qua limitation and the same is not found to be a material plea to be put to trial. The Courts in Neelavathi Vs. N. Natarajan (1980) 2 SCC 247, Jagannath Amin Vs. Seetharama (2007) 1 SCC 694, Md. Mohammad Ali Vs. Jagdish Kalita (2004) 1 SCC 721 and followed by this Court in Saroj Salkan Vs. Capt. Sanjeev Singh (2008) 155 CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.31 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:06:36 +0530 DLT 300 (DB) have held that in case of co- owners, possession of one is in law possession of all, unless ouster or exclusion is proved. It was further held that to be in joint possession in law, it is not necessary that plaintiff should be in actual possession of whole or part of property. Equally it was held to be not necessary that the plaintiff should be getting a share or some income from the property. So long as the right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. Mere long and continuous possession by itself is not enough, plea of ouster and adverse possession has to be raised in the written statement. Else, a co-sharer becomes a constructive trustee of the other co-sharer and the rights would be protected by the trust. Even mutation in the revenue record in the name of one co-sharer has been held to be not amounting to ouster unless there is a clear declaration that title of other co-sharer is denied and disputed. Not only is there no such plea in the written statement of the defendant No.2 but the defendant No.2 in his statement recorded today has deposed that after the demise of the father, the property has not been mutated in the name of any person and that till the life time of mother i.e. till the year 2011, it was she who was receiving rent from the tenant on the second floor of the property. It is thus quite evident that the defendant No.2 has not only not pleaded the ouster / exclusion of the plaintiff but no case of ouster / exclusion also is made out.
14. Paras 20 to 27 of Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496, though part of the concurring opinion, sets out the law correctly and is not affected by the majority view. It has been held:
"20. The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co- sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.32 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
+0530 2023.05.24 17:07:04 sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co- sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the court as a plaintiff seeking partition of his share in the joint property....."
14.9 The next judgment relied upon is also of High Court of Delhi in Renu Mathur Vs. Uma Narula (Supra), wherein also the Hon'ble Justice has observed as under:
"24. The present suit is not barred by limitation as the right to demand partition and to seek separate possession are recurring rights. Even if the plaintiffs or their predecessors-in-interest had not enforced their rights to partition, then they would be deemed to have chosen to continue the ownership in common for some more time only. The substantive right of the plaintiffs as co-owners to seek partition of the joint suit property would not stand extinguished by their predecessor's failure or their delay in seeking partition. A coordinate Bench in Sri Kishan Vs. Shri Ram Kishan & Ors. (supra) has held as under:-
"16. It is apparent from the record of the proceedings in suit No. 64 of 1994 that the plaintiff had withdrawn the suit without seeking liberty to institute a fresh suit on the same cause of action nor had court given such a liberty while dismissing the matter as withdrawn. Order XXIII Rule 1 of the Code of Civil Procedure lays down that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim or where the court does not grant such a liberty, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. So, on the face value there appears CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.33 of 57 NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:07:18 +0530 to be some merit in the contention of the defendants. However it is trite law that the general proposition laid down in Rule 1 of Order XXIII does not apply to a suit for partition and a suit for redemption of mortgage. The right to demand partition and separate possession is a recurring right. Therefore the cause of action in the subsequent suit for partition will be different from cause of action in the earlier suit which was withdrawn or abandoned and consequently Order XXIII Rule 1 sub-rule 4 will have no application.
17. The right to enforce partition is a legal incident of a co- ownership and as long as such co-ownership subsists, the right to seek partition continues. The mere fact that a co- owner files a suit for partition and then abandons or withdraws it will not deprive him of his right to seek partition of the joint property. The substantive right of a co-owner to seek partition of the joint property will not be extinguished by the provisions of Order XXIII Rule 1. If the plaintiff brings a suit for partition and then, for any reason, decides not to enforce the right immediately and withdraws the suit, then he would be deemed to have chosen to continue the ownership in common for some time more till he would find it necessary again to seek its termination. A suit which is barred by withdrawal of the claim under Order XXIII Rule 1(3) is one which is based on the same cause of action but a suit for partition and separate possession of the share which may be brought subsequently will be on a cause of action arising upon a demand subsequently made and refused [See Radhe Lal v. Mulchand, AIR (11) 1924 ALL 905].
18. A Division Bench of this Court in Jai Devi & Ors. v. Jodhi Ram & Ors., 6 (1970) DLT 549 has held that the bar of second suit contemplated in Order XXIII, Rule 1(4) is not applicable to a partition suit, as the cause of action in such a suit is a recurring one. In the said case the husband of the appellant therein, Mr. Babu Ram had filed a suit in the Court of Subordinate Judge 1st Class, Delhi for partition of the joint family properties. An CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.34 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:07:40 +0530 application was moved in the said suit by the plaintiff stating that he intended to withdraw the suit and did not want to pursue the same. Liberty was not reserved by the plaintiff either in his application or in his statement in Court to institute a fresh suit in respect of the subject matter of the suit nor was permission granted by the Court to withdraw with liberty to institute a fresh suit. Thereafter the wife of the plaintiff and his sons filed a suit for the partition of the same properties. One of the issues before the Court was whether the subsequent suit was barred by Order XXIII Rule 1 of the Code of Civil Procedure. The Court observed:
"(13) Coming to the merits of the appeal the only Issue which require determination is whether the suit out of which the present appeal has arisen was barred by Order 23, Rule 1 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. This proposition, as a general proposition, is correct but it does not apply to suits for partition. In 1967 (1) Mlj 175 in re: Bajah V. Maheswara Rao v. Bajah V. Bajeswara Rao it has been held that:--
"So far as a suit for partition or a suit for redemption is concerned, it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is recurring cause of action. Even if the plaintiff is not granted permission, under Order 23, Rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases." (14) To the same effect are the cases reported in AIR 1944. Sindh 192; AIR Madras 112; AIR 1935 Madras 909 and AIR 1924 Allahabad 905. We may only mention one other case reported in AIR. 1950 Federal Court In re: Thota China Subha Rao and Others v. Mattapalli Raju and Others, where it has been observed:--
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.35 of 57 NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:07:51 +0530 "Provisions like Order 9, Rule 9 or Order 23, Rule 1 will not debar the mortgagor from filing a second suit for redemption because, as in a partition suit the cause of action in a redemption suit is a recurring one." (15) Even though, therefore, liberty was not reserved while withdrawing the earlier suit, the present suit would not be barred by Order 23, Rule 1 of the Code of Civil Procedure.""
14.10 The next judgment relied upon is Jai Devi Vs. Jodhi Ram (Supra), wherein also it was observed that so far as suit for partition or a suit for redemption is concerned, the cause of action is a recurring one. There are other judgments also of High Court of Delhi in Deepak Kaur Vs. S. Hari Simran Singh & Ors. (Supra) and Smt. Anita Vig & Anr Vs. Sh. Joginder Khanna & Ors. (Supra), by the same Hon'ble Justice who toed the similar line.
14.11 The next judgment is of Supreme Court of India in Ganesh Prasad Vs. Rajeshwar Prasad Jain & Ors. (Supra), wherein also the Court spelt out the same position in regard to the suit for redemption and partition.
14.12 Ld. Counsel for the Plaintiff also adverted to the question of limitation from the point of view of Article 113 of the Limitation Act in the light of the judgment of the Supreme Court in Shakti Bhog Food Industries Limited Vs. Central Bank of India & Another (Supra), which is worthwhile to note where the Court distinguished Article 58 and Article 113 and clarified the difference between "when right to sue accrues" from "when right to sue first accrues"
14.13 Upon hawk eye analysis of all the aforesaid judgments, it is perceived that except for the judgment in M.K. Govil Vs. Harish Chand Govil & Ors (Supra), in none of the other judgments, any CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.36 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:08:13 +0530 specific Article of the Limitation Act is mentioned as in all those judgments, the thrust of the Court perhaps was on the issue that the cause of action in case of partition suit and suit for redemption is a recurring one and, if a suit has been instituted once, which for some reasons is, later on withdrawn or abandoned, fresh suit on the same cause of action is not barred, even if no liberty of the Court was previously sought. However, in most of those judgments, there never arose any question of the co-sharer being excluded and ousted from the property and its implications thereof. In M.K. Govil Vs. Harish Chand Govil (Supra), Hon'ble Justice, High Court of Delhi, took note of Article 110 of the Schedule to the Limitation Act, upon the submissions of the Counsel, which provides limitation of 12 years commencing from the date when the exclusion becomes known to the plaintiff. The Hon'ble Justice, while taking the note of the said provision, concluded that since in that case the exclusion was nowhere pleaded, there was no merit in the contention of the suit being barred by limitation. But, the Court therein did not rule out the applicability of 110 to the suit for partition and in case where the ouster/exclusion is pleaded, the Court has to consider the same. Apart from this, in fact the Supreme Court also in the judgment in Ganesh Prasad Vs. Rajeshwar Prasad (Supra), had observed in paragraph 62 in the same breath that as in a partition suit, the cause of action in a redemption suit is a recurring one, until the right of redemption is extinguished or a suit for redemption is time barred. Thus, it can be extrapolated from this observation of Supreme Court that it was acknowledged that the suit for partition or the suit for redemption though may be having recurring cause of action but they may be time barred, if the situation so warrants.
14.14 Let us now also have a glance at some of the other judgments CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.37 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:08:25 +0530 wherein the issue of limitation has been dealt with in partition suits and find out whether the Courts have adopted the view that there is no period of limitation prescribed at all for suit for partition or limitation as prescribed in the form of Article 110 of the Schedule to the Limitation Act is to applied.
14.15 The judgment of High Court of Delhi in Arun Kumar Sharma & Ors. Vs. Santosh Shukla & Ors, date of decision 23.05.2018, is worth noting and the relevant paragraphs are as under:
"12. The question as to whether limitation applies in a partition suit is no longer res- integra. In Amrit Kaur v. Sarabjeet Singh (2008) 153 DLT 92 a Ld. Single Judge of this Court had held that the law of limitation applies in a partition suit and a suit filed after 19 years from the death of the parents was held to be barred by limitation. The relevant portion of the said judgment reads as under:
"8. Article 110 of the Schedule to the Act provides that a suit by a person excluded from a joint family property, to enforce a right to share therein is twelve years. The starting point is when the exclusion becomes known to the plaintiff.
9. It has been held that the object underlying this Article is to afford protection to a member of a joint Hindu family against prejudicial action by the other members of the family behind his back with respect to his interest in the family property. It has been held that this provision, prescribing the period of limitation, and the conditions of its applicability also apply to suits for partition (Radhoba v. Aburao AIR 1929 PC 231). ....... ................
13. The averments in the plaint are sufficient to deduce that the even according to the plaintiff, she was excluded from enjoyment of the joint family properties immediately after her father‟s death. The suit is, significantly enough, not accompanied by any document; it CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.38 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:08:36 +0530 does not also rely on any document. No list of documents has been filed in the last two years. Further, the plaintiff does not advert to a single specific date when the defendants were asked to give her the share in properties, and when they refused. The entire case set up is on an oral demand. No notice, of lawyer, or even of the plaintiff, is relied upon. Thus, on a meaningful reading of the plaint, it has to be concluded that the allusion of demand in 2007, when other parts of the suit show that the grievance about the plaintiff‟s share having arisen in 1988, is an attempt to get over the question of limitation.
14. In the opinion of this court, an overall reading of the plaint shows that the alleged cause of action for filing this suit, for CS(OS) 1574/2006 Page 13 enforcement of the plaintiff‟‟s right in the Schedule A properties, according to her, arose in 1988; at best in 1993. In either case, the suit, filed in 2006 is clearly time barred. ...........""
14.16 Another judgment also is of High Court of Delhi in Ramesh Kumar Vs. Kishori Lal & Ors, date of decision 13.12.2018, the relevant paragraphs are as under:
"16. In view of these facts, the version of the Plaintiff is not possible to believe, inasmuch as there is no evidence of the cause of action having arisen in 2014. The Plaintiff, having been out of the property for more than 35 years, the right to sue has accrued long back. Going by any reasonable standard, the right to sue had accrued much prior to 2014. No evidence has been led to prove as to how and in what manner the cause of action arose in 2014. Without any evidence, the bald averment in the plaint that it arose in 2014, cannot be believed. The Defendant No. 1's stand is more credible. Defendant No. 1 has been earning rent of Rs.7,500/- from various tenants. This is the only property which he has. Knowing fully well that there is rent being earned from the suit property, any rights which the Plaintiff CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.39 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:08:49 +0530 would have had ought to have been asserted upon the death of the father/mother. Non- assertion of the same leads one to the conclusion that the version of the Defendant that he had purchased the share of the Plaintiff in 1984-85 is correct on a preponderance of probability. The right to sue having accrued in the 80s/early 90s, the creation of an artificial cause of action in 2014 is not liable to be accepted. The law on this aspect is clear and is settled in the case of Krishna Pillai Rajasekharan Nair (D) By Lrs v. Padmanabha Pillai (D) by Lrs and Ors., AIR (2004) SC 1206, wherein the Supreme Court has observed as under:
"22. In our opinion, the suit filed in the present case being a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Article 120 of Limitation Act, 1908. For a suit for partition the starting point of limitation is - when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied.
17. A learned Single Judge of this Court, in Amrit Kaur v. Sarabjeet Singh & Ors., 153 (2008) DLT 392, has held that the law of limitation being applicable to a suit for partition, a suit filed 90 years of the death of the parents is barred by limitation. The observations of this Court are set out herein below:
"7. Article 110 of the Schedule to the Act provides that a suit by a person excluded from a joint family property, to enforce a right to share therein is twelve years. The starting point is when the exclusion becomes known to the plaintiff.
8. It has been held that the object underlying this Article is to afford protection to a member of a joint Hindu family against prejudicial action by the other members of the family behind his back with respect to his interest in the family property. It has been held that this provision, prescribing the period of limitation, CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.40 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:09:01 +0530 and the conditions of its applicability also apply to suits for partition (Radhoba v. Ahurao, MANU/PR/0049/1929 : AIR 1929 PC 231). It has also been held that ‗exclusion' is a fact specific circumstance, to be seen in the light of materials on record in every case. However, what should be seen by the Court is the intention of the persons so seeking to exclude the plaintiff, from the enjoyment of his (or her)n share (Haresh v. Hardevi, MANU/UP/0073/1927 : 1927 (1) ILR 49 All 763; Velayudhan v. Velumpi Kunji, ILR 1958 Ker. 389 (FB) and Marudhanayagam Pillai v.
Sola Pillai, MANU/TN/0306/1965 : 77 Mad LW 697). This Court too, had applied a similar criteria, when considering whether the suit was time-barred, and in the judgment reported as Ramesh Chand v. Tek Chand and Others, MANU/DE/1092/2004 : 115 (2004) DLT 193."
14.17 The next judgment has also relied is of High Court of Delhi in further, Kanak Jai and Ors. Vs. Chakresh Kumar Jain, date of decision 15.04.2019, the relevant paragraphs are as under:
"22. The plea of the defendant/Counter Claimant on which this issue has been framed is that the prescribed period of limitation is of three years commencing from the date when M/s. Ranjit Singh Jain Jewellers, tenant in Shop No.1734 also known as Shop No.1734/2 was dissolved in the year 1997 as per Sales Tax record and the present suit filed in August, 2008 is hopelessly barred by time. However the counsel for the defendant/Counter Claimant neither in his oral arguments nor in his written arguments disclosed the Article of the Schedule to the Limitation Act, 1963 which prescribes the limitation for a suit for partition.
23. None of the Articles of the Schedule to the Limitation Act provides for a suit for partition. In the absence of any specific Article, the residuary Article 113 providing limitation of three years from the date when the right to sue accrues, would apply.
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24. It has been held in Vijay Manchanda Vs.
Ashok Manchanda 2010 (114) DRJ 467 [SLP
(C) No.8872-2010 preferred whereagainst was dismissed vide order dated 1st April, 2010] , Manita Khurana Vs. Indra Khurana AIR 2010 Del 69 and Baleshwar Dayal Sharma Vs. Bimla Gupta MANU/DE/7690/2017 that no co-owner/joint owner of the property can be compelled to seek partition and if desires to keep the property joint, can do so without fearing that his right to claim a share of the immovable property of which he is the co-
owner/joint owner will stand extinguished. A cause of action for a suit for partition would accrue only when partition is claimed and is denied or when the plaintiff is ousted from the property and the defendant starts claiming adversely to the plaintiff. This is nowhere the case of the plaintiffs or the defendant/Counter Claimant in this case. Though the plaintiffs have pleaded that they had for some time been requesting the defendant/Counter Claimant for partition and which the defendant/Counter Claimant had been avoiding but the plaintiffs for the first time demanded partition from the defendant/Counter Claimant by getting issued a legal notice to the defendant/Counter Claimant only on 10th June, 2008 and the present suit has been filed within three years therefrom on 2nd August, 2008."
14.18 The next judgment is also of High Court of Delhi in Sat Bhan Singh & Anr. Vs. Mahipat Singh & Ors, date of decision 31.08.2012, the relevant extracts are as under:
"9. As regards the second contention, as far as Article 110 of Limitation Act is concerned, that would not apply to the present case because the plaintiffs claim to be in joint possession of the suit land and this is not their case that they have been excluded from the joint property. The suit would, therefore, be governed by Article 113 of Limitation Act, which prescribes a limitation period of three years from the date when the right to sue accrues.
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10. The question when the right to sue accrues came up for consideration before the Judicial Committee in Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270, wherein the Judicial Committee, inter alia, observed as under:-
"There can be no „right to sue‟ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."
The above-referred principle was approved by Supreme Court in Mst.
Rukhmabai v. Lala Laxminarayan and Ors.
AIR 1960 SC 335, where the Court enunciated the legal position in this regard as under:-
"The legal position may be briefly status thus:
The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be clear and unequivocal threat to as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
In Krishna Pillai Rajasekharan Nair v.
Padmanabha Pillai AIR 2004 SC 1206, the Apex Court observed that for a suit for partition, the starting point of limitation is-- when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. This issue also came up for consideration before the Division Bench in the case of Nanak Chand (supra). In that case, the plaintiff had served a notice for partition upon the defendants on 17.05.1963. Computed from that date, the period of limitation expired on 17.05.1969. The suit, however, was filed on 23.07.1969. Relying upon the aforesaid decisions of the Privy Counsel and Supreme Court, the Division Bench held that the right of partition sprang into existence when the notice of severance and demand for partition CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.43 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:09:46 +0530 was served, but, the right to sue did not accrue until the defendant infringed or threatened to infringe that right."
14.19 In the aforesaid two judgments i.e. Arun Kumar Sharma & Ors. Vs. Santosh Shukla & Ors. (Supra) and Ramesh Kumar Vs. Kishori Lal & Ors. (Supra), the Hon'ble Justice of High Court of Delhi has unequivocally applied Article 110 to the suit for partition, on the back of previously given judgment of High Court of Delhi in Amrit Kaur Vs. Sarabjeet Singh & Ors., (2008) 153 DLT 92, and concluded that Article 110 is applicable to the suit for partition and the starting point is when the exclusion becomes known to the plaintiff.
14.20 In the judgment in Kanak Jai and Ors. Vs. Chakresh Kumar Jain (Supra), the Hon'ble Judge concluded that none of the Article of the Schedule to the Limitation Act provides for a suit for partition and in the absence of any specific article, the residuary Article 113 providing limitation of 3 years from the date when the right to sue accrues, would apply. In the next judgment, in Sat Bhan Singh & Anr. Vs. Mahipat Singh (Supra), the Hon'ble Judge of High Court of Delhi, categorically ruled out the application of Article 110 of Limitation Act if the exclusion is not pleaded and observed that such suits of partition would be governed by Article 113 of the Limitation Act. In the said case, the Hon'ble Judge had also referred to the judgment of Supreme Court in Krishna Pillai Rajasekharan Nair Vs. Padmanabha Pillai, AIR 2004 SC 1206, wherein the Apex Court had observed that for a suit for partition, the starting point of limitation is when the right to sue accrues, i.e. when the plaintiff had notice of his entitlement to partition being denied.
14.21 Further, some of the other High Courts also have acknowledged CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.44 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:09:58 +0530 the applicability of Article 110 of Limitation Act to the suits for partition where the party has been excluded from the joint family property (reference is made to Ram Chander and Ors vs. Baru and Others, C.M. NO. 1364-C of 2011, High Court of Punjab and Haryana and Gulabrao Maruti Bhagat V. Bhagwan Nana Bhagat and Ors. , Bombay High Court, dated 08.12.2000).
14.22 It can be discerned from the afore-noted various case laws of High Court of Delhi and of the Supreme Court that all the Courts have concluded that there does exist a limitation period in suits for partition, but there appears to be a lack of consensus in regard to the applicability of the relevant Article governing the suit for partition, whether it is Article 110 of the Limitation Act or Article 113 of the Limitation Act. For reference, both the Articles are reproduced herein below:
Description of appeal Period of limitation Time from which period begins to run
110. By a person excluded Twelve Years When the exclusion from a joint family becomes known to the property to enforce a right plaintiff.
to share therein.
Description of application Period of limitation Time from which period begins to run
113. Any suit for which no Three years When the right to sue period of limitation is accrues.
provided elsewhere in this Schedule.
14.23 The aforesaid lack of consensus appears to be for the reason that in cases where the party is not in possession of the property and has been excluded from claiming the right to share therein, Article 110 of Limitation Act would apply and where the party is in possession of the CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.45 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:10:09 +0530 suit property but the other party is not willing to partition the property by metes and bounds, in that scenario, Article 113 of the Limitation Act would apply. In the case of Sat Bhan Singh & Anr. Vs. Mahipat Singh & Ors (Supra), Hon'ble Judge of High Court of Delhi, has observed that since the plaintiff in that case was in possession of the suit property, Article 110 was held to be having no application and, thus, Article 113 was invoked. Thus, this distinctiveness in the application of both the Articles make the picture clear and since in the instant case, it is not the case of plaintiff that he is in physical possession of the suit property, Article 110 of the Limitation Act would apply.
14.24 If we analyze the case in hand from the point of view of applicability of Article 110 of Limitation Act, initially, from the plaint in para 39, the cause of action has been shown to have arisen on different dates but, explicitly, it can be culled out from paragraph 27 that the plaintiff alongwith defendant no.1 and 5 visited defendant no. 9 and 10 on 20.11.2010 and objected to deal with property dealers, builders and further requested the defendant no.9 and 10 for partitioning the suit property amongst the plaintiff and defendants in accordance with their respective right and shares, but, defendant no.9 and 10, instead of agreeing to the demand of the plaintiffs, did not let the plaintiff enter the house and started threatening him and defendant no.1 and 5 of dire consequences in case the plaintiff or anyone demand/claim any right, title or interest in the suit property. It is further pleaded in paragraph 29 that defendant no.9 and 10 further refused to partition the suit property and claimed that since they are in possession of the suit property, they are at liberty to deal with suit property in the mode and manner as deemed fit and proper.
14.25 Thereafter, in paragraph 30, it is claimed that plaintiffs and CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.46 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:10:21 +0530 defendants no.1 to 5 and 12 again visited the defendants no. 9 and 10 and during their visit on 17.04.2011, they entreated defendant no.9 and 10 not to make any unauthorized and illegal construction in the existing structure of the suit property and further not to enter into any contract or collaboration agreement with any builder without the consent of the plaintiff and other defendants.
14.26 It can be descried from the aforesaid extract of the plaint that the demand for partitioning the suit property was made on 20.11.2010 and it is when defendant no.9 and 10 clearly refuted the said demand. However, during cross-examination of plaintiff/PW-1, he stated that in the year 1999 he personally went to defendant no.9 and 10 wherein he was informed of him having no right in the suit property. Though from this extract, an explicit demand for partition is not made out, however, upon reading the very next extract, wherein PW-1 has stated that he went again for partition in the year 2010, meaning thereby that in the previous extract he meant having visiting the house of defendant no.9 and 10 and asked for partition of the suit property. This clearly would amount to introduction of a new fact which would have a bearing on the clock of limitation as it is to be seen when the plaintiff had explicitly claim to have approached defendant no.9 and 10 in the year 1999 and when his right in the suit property was denied to him, whether the plaintiff deliberately concealed this fact and resorted to clever drafting of the plaint in order to bring the suit within the domain of limitation. But before building further on this aspect, the analysis of the written statement and the replication is also warranted.
14.27 The examination of the written statement on behalf of defendant no.8 and 9, particularly on the point of limitation, shows a specific pleading that for a short period Mr. Shori Lal, Mr. Om Prakash and Mr. CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.47 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:10:33 +0530 Iqbal Nath and there family came to stay in the suit property and were permitted to stay their out of love and affection, but were asked by Mr. Sham Lal and his mother Late Mrs. Labh Kaur to leave the property as the suit property was the exclusive property of the Mr. Sham Lal, upon which they left. Precisely, it was 1981-82 when LRs of Shori Lal left and it was in the year 1988 when Mr. Om Prakash Khosla and Mr. Iqbal Nath Khosla and their family left. It is further pleaded that Mr. Sham Lal Khosla had then made further construction in the suit property by adding three more rooms. This has also been the stand of DW-1 in her affidavit Ex.DW1/A. As against this, in the replication on behalf of plaintiff, the stand taken is that since the family was growing in size and suit property was not sufficient to accommodate, the three sons namely Shori Lal, Om Prakash and Iqbal Nath had acquired out of their own savings their respective property and decided to shift, but had allowed Late Sham Lal to remain in the suit property as he could not afford to build and acquire any property of his own and since he was having grown up unmarried daughters, he was allowed to remain there till such time his daughters were married. But, in the cross-examination of plaintiff/PW-1, when he was posed queries as to when his father Om Prakash and his other brothers left the suit property, PW-1 was ignoramus and could not deliver any conclusive reply. The relevant excerpts of his testimony in this regard is as under:
"I do not remember the exact year when my father and his brothers moved out of the suit property. They all had constructed their own residences to live in and have left the suit property to the father of defendant no.9 and 10 Sh. Sham Lal Khosla as the co-owner. At the time of moving out of the suit property, I do not know whether my uncles have purchased any property or not.
In the year 1989, my father and their CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.48 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:11:11 +0530 brothers namely Iqbal Nath and Shori Lal lived with their family alongwith the defendant no.9 and 10 and their father in Jangpura. I do not remember when I and my family moved out of the suit property. My grandmother Labh Kaur Khosla did not forcefully remove my father and my family from the suit property. I do not know when everybody moved out of the suit property."
14.28 Furthermore, in the replication, it is also specified that after the death of Late Sh. Sham Lal and his wife, other legal heirs approached the defendant no.9 and 10 for partitioning the suit property which these defendants took it offensively and lodged the false complaint against the persons who approached for partitioning the suit property. None, taking it offensively would imply denial of their right in the suit property.
14.29 From the written statement, it appears that defendants have sought to plead the exclusion of the father of the plaintiff and his other brothers from the suit property in the year 1981-82 and 1988, when they were asked to leave the suit property. This can be one of the argument that since at that time the father of the plaintiff and his other brothers left the suit property on the asking of Sh. Sham Lal Khosla and Late Smt. Labh Kaur Khosla, whether that would amount to their exclusion/ouster from the suit property, from the point of view of law of limitation. To this effect, DW-1 has further attempted to build upon the narrative by introducing new facts in her evidence Ex.DW-1/A, which clearly amount to improvements which are beyond pleadings and, thus, cannot be accorded any credit. Without reproducing those paragraphs herein, I would like to point out those paragraphs which are numbered 19, 20, 21, 22, 23, 24. All these paragraphs deserve to be held to be alien and foreign to the pleadings and, thus, no deliberation upon those is CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.49 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:13:17 +0530 warranted. By inserting these new facts, defendant no.9 and 10 have attempted to put forth various time lines during which the issue of partition was raised by the brother of the plaintiff and other legal heirs, and all of whom were denied any right in the suit property. These paragraphs cannot be read into evidence, but eventually, it is the suit of the plaintiff and he has to come clean on the specific date as to when the cause of action arose in respect of the relief of partition.
14.30 At this juncture, I would now like to refer to paragraph 26 of the plaint which employs the words "due to passage of time, the behavior and attitude of defendant no.9 and 10 have become indifferent, mala fide and greedy and want to usurp the entire property". Now the details qua this passage of time have not been clearly etched out in the plaint, as this would also have a bearing on the issue of limitation since we have already examined that the limitation as prescribed in Section 110 of Limitation Act of 12 years would initiate when the plaintiff first had the notice of his exclusion from the suit property. Thus, the ambiguity in the plaint is manifest in paragraph 26 as well.
14.31 Now, on poring over the plaint, replication and the cross- examination of PW-1, we have three different time lines on which the plaintiff or other legal heirs have claimed to have asserted their right over the suit property, which were expressly or impliedly denied to them. The three time lines are mentioned herein under:
a) In the plaint, paragraph 39 contains the aspect of the cause of action, which has already been reproduced in the preceding discussion, but, with liberty to be repetitive in paragraph 27 of the plaint, where it is stated that plaintiff alongwith defendant no.1 and 5 visited defendant no.9 and 10 on 20.11.2010 and implored them for partitioning the suit CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.50 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:13:34 +0530 property and instead of agreeing to their demand, they were not permitted to enter the suit property and were threatened with dire consequences that in case plaintiff or any other person would demand/claim any right, title and or interest in the suit property.
b) Then we have the replication wherein it is postulated that soon after the death of Sham Lal Khosla and his wife, legal heirs approached the defendant for partitioning the suit party, which the defendants took offensively. Though in the replication, there is no specific date of death of Late Sh. Sham Lal and his wife is mentioned, in the plaint, the date of death of Sham Lal is mentioned as 25.11.1996 and the date of death of his wife Smt. Nirmal Khosla as 24.02.1998. Thus, plaintiff though has employed the words "after the death of Late Sham Lal and his wife", no specific date is mentioned when defendant no.9 and 10 were approached for partitioning the suit property.
c) Then in the cross-examination of PW-1, he claimed that in the year 1999, he personally went to the house of defendant no.9 and 10 wherein he was told that he had no right in the suit property.
14.32 From the afore-noted three time lines put forth on behalf of plaintiff, it cannot be discerned with specificity on which date or during what time, the plaintiff or the other legal heirs had asked for partition of the suit. Whether it was after the death of Sham Lal Khosla in the year 1996, whether it was after the death of his wife Smt. Nirmal Khosla in 1998, or in 1999, or in 2010. It was the bounden duty of the plaintiff to have come clean on the exact time period when he or any other legal heir had first asserted his right of partition of the suit property and when it was denied, as from that period only, in view of Article 110 of the Limitation Act, the period of 12 years would have been computed. An CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.51 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
+0530 2023.05.24 17:13:47 argument was put forth by Ld. Counsel for plaintiff that when the plaintiff/PW-1, in his cross-examination, claimed that he went to the house of defendant no.9 and 10 in the year 1999 and when he was denied his right in the suit property, even though he had not mentioned any specific date and month of the year 1999, the onus is upon the defendant no.9 and 10 to show that the suit of the plaintiff is barred by law of limitation, even if it is computed from the year 1999, the suit having been filed in May 2011. But, in my opinion, the foundational facts of the limitation have to be asserted by the plaintiff and if on that score, the case of the plaintiff is found to be on slippery road, the plaintiff cannot skirt his responsibility by passing the buck to the defendants. No doubt, the burden was upon the defendants to prove that the suit is barred by limitation, but that stood discharged when plaintiff/PW-1 himself acknowledged that he approached defendant no.9 and 10 in the year 1999 when he was denied his right in the suit property, it was incumbent upon him to have specified the exact date or month when he approached the defendants for the said purpose, whether it was before May (the suit is shown to have been filed on 31.05.2011) or after that. The burden upon him was all the more onerous in the light of the different time periods being mentioned in the plaint and the replication when the plaintiff or other legal heirs first asserted their right over the suit property. In this regard, I hereby rely upon the judgment of Allahabad High Court in State of U.P. Vs. Baijnath Prasad (Dead) by LRs, date of decision 19.05.2015, the relevant paragraphs of which are as under:
"17. The doctrine of limitation is founded on considerations of public policy and expediency. It does not give a right where there exist none, but to impose a bar after a certain period to the remedy for enforcing an existing right. The object is to compel litigants to be diligent for seeking remedies in Courts of CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.52 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:14:11 +0530 law if there is any infringement of their right and to prevent and prohibit stale claims. It fixes a life span for remedy for redressal of the legal injury, if suffered, but not to continue such remedy for an immemorial length of time. Rules of limitation do not destroy right of parties and do not create substantive rights if none exist already. However, there is one exception i.e. Section 28 of the Act, which provides that at the determination of period prescribed for instituting suit for possession of any property, his right to such property shall stand conferred title. The law of limitation is enshrined in the maxim "interest reipublicae ut sit finis litium" (it is for the general welfare that a period be part to litigation).
18. If a suit is barred by limitation it is an obligation upon the Court to dismiss such a suit irrespective of the fact whether an objection is taken by other side or not. Section 3 of Act imposes an obligation upon a Court to dismiss a suit which ha been filed beyond the period prescribed in statute. The Court cannot admit a case in absence of plea of limitation raised by defendant though the suit was filed beyond the period prescribed in statute.
19. In Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, AIR 1964 SC 1336, it was held that the Court has no choice in the matter and the Court is bound to dismiss the suit which is barred by limitation. The burden of proof in the matter of limitation lies upon the plaintiff. It is only when the prima facie plaintiff shows that his case is within limitation, the onus may shift upon the defendants to prove otherwise."
14.33 The exposition of the above noted judgment is that it is only when the prima facie plaintiff shows that his case is within limitation, the onus may shift upon the defendants to prove otherwise. Thus, the argument of Ld. Counsel for the plaintiff that defendant no.9 and 10 have failed to prove that the suit was barred by limitation does not pass any muster.
CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.53 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:14:24 +0530
14.34 The present case can also be looked at from another angle. From the holistic reading of the pleadings, "the exclusion" as envisaged in Article 110 of Limitation Act, can also be made out from the plea of the defendant that Mr. Shori Lal, Mr. Om Prakash and Mr. Iqbal Nath were asked to leave the suit property by Mr. Sham Lal and Late Smt. Labh Kaur, to which they agreed and left the suit property. LRs of Shori Lal left in 1981-82 and Sh. Om Prakash Khosla and Sh. Iqbal Khosla left with their families in the year 1988. The plaint is completely silent as to any activity on the part of any of the above said persons or their legal heirs in respect of asserting their rights over the suit property till the year 1999, when the plaintiff claimed to have approached defendant no.9 and 10 and was denied his rights in the suit property. In Radhoba Vs. Ahurao, AIR 1929 Privi Council 231, as relied in Amrit Kaur Vs. Sarabjeet Singh and Ors, 153 (2008) DLT 392, it has been held that "exclusion" is a fact specific circumstance, to be seen in the light of materials on record in every case. What should be seen by the Court is the intention of the person so seeking to exclude the plaintiff, from the enjoyment of his (or her) share. The circumstances as claimed to have transpired in the year 1981-82 and in the year 1988, when other brothers of Sh. Sham Lal had left the suit property with their families upon being asked, and for the next almost 10 years, there has been no overt act on the part of the other brothers and their legal heirs in respect of the suit property, would indicate their exclusion at that point of time only. In the replication, there has not been any specific counter submission on behalf of plaintiff that at the time of leaving the suit property, any protest or demur was raised. There has been no such assertion that at the time of leaving, Sh. Sham Lal or Late Smt. Labh Kaur was indicated in any manner that the suit property is to be held by them as trustee for the other brothers or their legal heirs. In fact, in the replication it has also been CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.54 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:14:41 +0530 claimed that Sh. Sham Lal was permitted to reside in the suit property till the marriage of his daughters. But there is no such plea that after the marriage of one of the daughters i.e. defendant no.10 (other daughter being unmarried), any step was taken towards asserting their rights over the suit property. As has already been noted, PW-1 in his cross- examination has rather feigned ignorance as to when his family and that of other brothers had left the suit property, despite putting on record no specific denial that the LRs of Sh. Shori Lal left the suit property some time in 1981-82 and that of Sh. Om Prakash and Sh Iqbal Khosla in the year 1988.
14.35 Reverting now to the fact whether the plaintiff can be said to have resorted to clever drafting of the plaint in order to bring the suit within the ambit of limitation. From the afore-noted circumstances, the answer to this would be in affirmative.
14.36 The main thrust of Ld. Counsel for the plaintiff was on the judgment of High Court of Delhi in M.K. Govil Case, but it is clearly distinguishable as in the said case the Hon'ble Court had observed that there was no pleading qua the exclusion and the only material was that the defendants had left the suit property in the year 1975, which certainly was not indicative of being excluded from the suit property, which is not the case herein.
14.37 In so far the other defendants are concerned, it is an undisputed position that they have simply toed the line of the plaintiff, without making any positive assertions on their part. None of the other defendants has entered the witness box to substantiate their pleadings. The settled dictum of law is that the pleadings are not to be treated as CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.55 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:14:57 +0530 evidence and if the parties desired the Court to rule in their favor, they have to stand on their own legs underpinning the pleadings with evidence. All the other defendants, except defendant no.9 and 10, have not filed any counter pleadings against the written statement of defendant no.9 and 10. They have not availed the opportunity to cross- examine PW-1 or DW-1. Also, it is to be seen that when defendant no.9 and 10 have pleaded and proved the ouster/exclusion of the other legal heirs of the the suit property, that would also apply to the other defendants.
14.38 As regards the argument of Ld. Counsel for the plaintiff that after the preliminary decree of partition was passed vide order dated 05.09.2013, it was partly set aside qua defendant no.9 and 10 only vide order dated 18.12.2019 and that the said order still holds good, I am of the view that the effect of the said order would be to set aside the preliminary decree dated 05.09.2013 in toto as the suit property is only one and if defendant no.9 and 10 were permitted to setup their defence qua the same, the rights of all other defendants cannot be said to be crystallized in the suit property. Moreover, Ld. Predecessor of this Court had also observed in his order dated 18.12.2019 that the said order was subject to final decision of the suit in respect of all the defendants.
14.39 Thus, viewing it from any which way, the exclusion of the brothers of Sh. Sham Lal from the suit property took place in the year 1988 and the suit ought to have been instituted 12 years thereafter, or at the most after the death of Smt. Nirmal Khosla on 24.02.1998, when the legal heirs approached defendant no.9 and 10 for partition of the suit property, which was taken offensively or within 12 years after 1999, when the plaintiff had approached defendant no. 9 and 10, the date and CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.56 of 57 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.05.24 17:15:23 +0530 month of which is not specified, the suit is held to be time barred.
Issue no.2 is accordingly decided in favor of defendant no.9 and 10 and against the plaintiff.
15. Issue no.5: Relief.
In the light of the in extenso discussion in issue no.2 and the decision therein, the plaintiff is not entitled to the relief of partition, the suit being barred by law. The suit is, thus, dismissed. There shall be no order as to cost. Decree sheet be drawn up.
Digitally signed by
NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2023.05.24
Announced & dictated in 17:15:38 +0530
the open court on 24.05.2023 (Navjeet Budhiraja)
Additional District Judge-03
South East District,
Saket Courts, New Delhi
24.05.2023
Certified that this judgment contains 57 pages and each page bears my signatures.
(Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 24.05.2023 CS DJ No. 10027/2016 Shri. Rakesh Khosla Vs. Sh. Anil Khosla & Ors. Page no.57 of 57